February 2009 Archives

Natural law says that in a recession, when demand dries up supply dries up too. This shop had imposed its energy across the whole block, anchoring a runway of outlets for human hair wigs, nail care, and shoes to get ready for the step up onto the city bus. One night recently, they left the lights on and we saw it was gone.

The Shepard Fairey vs. A.P. lawsuit points out that while a picture might get to be unique, images only get to be iconic.

During this writing, I'm listening to Terry Gross of NPR doing interviews in which the copyright lawsuit of Shepard Fairey vs. the Associated Press is shaping up as a debate about the right to appropriate versus the prohibition to misappropriate.

So far, no one in the interviews is actually honing in on this specific conflict with those words. There's a lot of chatter about "Fair Use". Even the lawyer who is discussing the issue is pointing out that there is no one-size-fits-all regulation that pushes the court one way or the other.

Fairey notes that he used Google to find the photo of Barack Obama on which he based his poster. No one is claiming an illegal discovery of distributed material. Is Google illegally distributing photos? Let's watch the A.P.sue Google.

Next, "appropriate" comes off as a slippery slope. Even the Webster dictionary acknowledges three different meanings, but I'll line them up here the way a prosecutor would:

1 : to set apart for or assign to a particular purpose or use 2 : to take exclusive possession of 3 : to take or make use of without authority or right

Of course Google does not make #2 very likely to begin with.

So, what about "misappropriate"? Apparently it only pertains to (or I should say against) the first meaning (above) of "appropriate" . Otherwise, as prosecutors, we'd get a negation of our real intent in both #2 and #3!

We have to think that Fairey, both by word and deed, is defending his right to meaning #1. But the A.P. is saying that he doesn't have that right because the A.P. , it claims, itself already has that right, exclusively. This would suggest that the A.P. somehow explicitly prohibited the particular use of the photograph that in effect made it a "sketch" for the famous Obama Hope poster that Fairey produced.

For just a second, it's worth pointing out that the photographer said he didn't recognize that the photograph was his, when it started to circulate across the media with attribution to him. This is interesting, a little, but not relevant since he had "filed" the photo with the A.P. when it was taken, and got paid for doing that -- namely, for creating A.P.'s property.

What starts to emerge is that Fairey is in trouble with the A.P. because he did not disguise A.P.'s property enough with his transformations of it and additions to it. But the real reason why the A.P. is upset is because the A.P. considers Fairey's picture to be an unauthorized version of the same image that the A.P. feels makes its picture (property) valuable in a marketplace.

If this is going to hold up for the A.P., then there would need to be some ruling that says the A.P. had -- and used -- a legal mechanism for acquiring exclusive authority over the use of the image, not just exclusive ownership of the picture. That's not likely to hold up: all it would take is for any picture of sufficient similarity, made by any other (especially non-A.P.) photographer or draftsperson at the same event, to surface and present the same image.

Even if that did not actually happen, logically it remains that such exclusive authority over use of an image is implausible due to the high probability that the venue where the photograph was made would allow reasonable alternatives either at the same time or at many other times. A.P. cannot control the icon that Obama has already become. (How hard is it to come up with an image of Obama looking visionary and hopeful? It's basically a pose if intentional, and not-unusual body language if not. All you need to do is "cover" the guy. Surveillance.)

Once we concede that the image is not especially rare, and admit that due to circumstances it is illogical to assume the possibility of control over it, the A.P.'s picture simpy reverts back to being property; and when it comes to property, the salient issue is not duplication but trespassing.

Webster's Dictionary has a prominent option amongst its definitions of trespass: an unlawful act committed on the person, property, or rights of another . This would be an interesting accusation for the prosecutors to levy against Fairey if his alterations of the A.P. photograph made the original unusable as intended. To keep from getting long-winded about this point, I'll just point out that without evidence describing that intent, there would be only the reasonable assumption of intent, and that assumption would be based on precedents.

This is where Google throws everything out of whack. By placing so much material so broadly simultaneously, Google obsoletes conventional assumptions (precents) about what boundaries are in place to delimit a "market" and thereby create value. And without a defensible and compelling formula for the market definition, the A.P. has no way to argue that Fairey did anything significantly detrimental at all to A.P.'s property or property value. This would leave nothing for the prosecutors to chew on except the strict interpretation of whether some evident act on Fairey's part was actually "unlawful" per the letter of the law, forcing some penalty ruling. Meanwhile, is Google the Napster of photography?

It's getting less likely that the outcome of this lawsuit will be announced in the local newspapers; during this writing, the San Francisco Chronicle and other papers are busy trying to figure out what day next month they are going to go out of business -- largely due to the mass distrbution of their raw and "finished" material over the internet.

On the highway of his mind, Mom's cupidist stylings hit ice and slip into the ditch.

...All you ever do is read those stupid particle physics comic books. When are you going to get a girl?

...That's the story then? You're going to keep taking him to that dodgy joint with your "friends"? What kind of father are you? Do I have to put my boots up your bum every... Friday... night... ?

I don't know. I so love him for his mind, but all he ever wants to do is listen to John Mayer and stick his tongue down my throat. I can't go over there again. Maybe I should cut my hair...

Meanwhile, in Bristol...

... Say, this is a pretty good comic book... Maybe I'll stay in tonight.

Copyright 2009 Malcolm Ryder, except for the parts where some random lawyer at a tv station says that recontextualization of material effects of prior commercial works does not constitute freedom of expression and I'm sentenced to six years of removing "samples" from hip hop recordings in a Boston jail cell with Shepard Fairey .

In 2007, the DeYoung Museum brought a celebrated Hiroshi Sugimoto picture around that, provocatively, worked on the subject matter of images by showing an absent image.

To get a feel for this, a simple web search finds stock photo-imagery that gets the same ball rolling.

Ignore for now the awkward alignment of the composition in this stock photo; neater but nearly identical work from Corbis is easily found within seconds via Google Image or whatever, without making much difference. Sugimoto's picture enjoys a more exalted public status for a number of other reasons. We like to think that the matter is simple -- that the Sugimoto's beauty is simply that much higher. But instead, its celebrity status is mainly due to what an NPR debate on the Art Market called "consensus". Stated: in the art market, people agree that something has some level of value, and because they agree that it does, then it does.

That self-fulfilling prophecy of bestowed value is not the same as being self-evidently valuable -- and let's look at Sugimoto's picture (below) and the stock photo to confirm that.

The direct comparison of the pictures reveals a certain relative shapelessness in the stock photo, shapelessness that simultaneously presents some restraint from "artistic" intervention and some abundance of editorial attention to detail. This makes it more likely that the usefulness of the picture comes from its information more than from its design. Primarily, the stock effort uses the picture to show the theater.

Conversely, the Sugimoto picture goes for delivering the design, more than for the potential information. Sugimoto uses the theater to make the picture. Now it's just a matter of how much you like or want the design.

Effectively, the stock photo gets in front of its audience and says "Like This." while the Sugimoto photo gets in front of its audience and says "Me."

Typically, it is presented that the Sugimoto piece is more valuable because its characteristics are more desirable. Granted, even if the stock photo was actually more difficult to produce, it is not as likely to enjoy celebrity standing as does the Sugimoto piece. Put simply, presuming the same subject of imagery, and no advanced warning, someone typically wants Sugimoto's outcome more than they want the outcome of the stock photo. As pertains to notions of comparative value, judgments about the "crafted" result typically overwhelm the interest in the "crafting" -- because the consumer of the picture is in charge.

Many people even presume that art consumers are somehow more important than other consumers, and/or are better judges. But that is more than a bit lazy. Or more precisely, it is an attitude more about us than about the pictures. The more reasonable observation is that a picture cues its audience based on how it is used.

In the NPR debate, artist Chuck Close said, "I would just repeat that the most important thing is the value that art... art... is a meritocracy. It is a meritocracy because the final arbiters of what is important are other artists. All the hype, all the spin, all the effort to construct a career out of thin air, all the efforts to manipulate the market notwithstanding, over the long haul if you don’t have the respect of other artists it will disappear and it will not stand the test of time." It's important to parse this out correctly: Close did not point at particular works, but instead at the idea that work is reassessed repeatedly over time, and that careers rely on the work re-earning value again and again. This need not be the same instances of work that are re-earning value, but it might be; alternatively, it might be the worker who repeatedly exhibits ways to earn granted value, even if never doing the same thing twice. Punchline: (a.) the involvement of the consumer and (b.) the dynamic of ongoing work(s) generate variability that in reviews and critiques competes with (c.) the intrinsics of any single picture coveted as a prize object. These are at least three dimensions of evaluation.

In the vernacular, these terms would be Who cares?What are my options? and What is it like? This reflects the importance of purposefulness. Arguably, Sugimoto's finished picture is not well suited to the purpose served by the stock photo, but also the finished stock photo is not well suited to the purpose of Chuck Close's artists. Yet more importantly, in either case the important moment of purpose could be unique, impermanent, unrepeatable, or any combination of the three. Why is this important?

The importance lies in the fact that the "value" of the picture is different from what the picture is "worth" -- and worth, even in "art", is all about the moment, while value is not. The same Sugimoto might not be as "successful" on Friday as it was on the preceding Monday.

Chuck Close's expert testimony actually points to the difference: the market is about assigning worth to value; it is the prophesizing aspect, and it is fickle. Value itself, however, is just the picture's own assertion (self-evidence) of some distinction having a significance. Worth is about how desirable the distinction is to the consumer; Value is about how the particular difference that the picture identifies is important compared to its alternatives.

So, we can see it now: by definition, value is self-evident. That said, the primary responsibility of any picture is to "perform" well in the heat of the moment. Acknowledging that, the exhibition venues for pictures need to be in place primarily to give a picture a fighting chance -- not to make them more worthy, but instead to protect their value. Thus a scrapbook, screen, magazine, gallery or museum are all functionally important for the same reason. Although in any case they may range from the poorly to the expertly executed, they all intend to help the picture's cues find an audience that might care, a consumer with an appropriate purpose.

Then, beyond the picture's value proposition, each consumer's desire to possess a picture (especially as an object) is essentially a case of a "market-of-one".

Meanwhile, hoarding and fetishism are two prevalent consumer behaviors that most strongly reflect worth. This isn't lost on picture distributors. And just as exclusivity may be pretty easily engineered if not occurring naturally, marketing goes a long way to artificially generate fetishism. So it is clear, really, that when the exhibition vehicles cater to hoarding and fetishism, they are not thinking mainly about the pictures but instead mainly about the consumers. Typically, this show strategy involves bait: hyping certain cues -- qualities -- as "signatures" of the kind of distinction making up the pictures' value.

This isn't news to anyone, so why is it important to note? The main reason is that broadcasting and digital reproduction are almost antithetical to the culture of hoarding and fetishism in the circulation of pictures. It reveals that many celebrity presentations are essentially arbitrary, looking mainly to attract another fan or groupie to the celebrity. This is where we expect to see a divergence of "reviewers" from "critics" but very often don't get it.

Meanwhile, where distinctions constituting "marketable value" have been sustained heretofore on the basis of defacto limited access, current distribution methods have increased exposure to the public by orders of magnitude. The probability is that standing out amongst other pictures now disproportionately requires image innovation first and speed-to-market second -- which is why publicized art in our time seems trendy even as it retains aspirations to semi-permanent retention or collectability. At the "low" end, it might be Skills to lock in now: 27 ways to make Photoshop dance. At the "high" end, it might be Portraits of me impersonating famous corpses. And as Warhol is said to have said, everyone will be famous for fifteen minutes. Now we understand more that "everyone" might really be... anyone.

That, and the other notes above, suggest an anti-hype lexicon for future discussions:

- Popular pictures are those that have very many markets-of-one, as opposed to one market-of-very many

- Valuable pictures generally bring up a distinctive idea in their current context, whether they are popular or not.

- Pictures of high worth may have that worth specifically because a community forms from the picture's markets-of-one. Yet it must be noted that a single market-of-one can be all that is necessary to turn a picture into a "priceless" object of desire. The question is whether today's unprecedented freedom of access to the picture raises or lowers demand for the object.

- And lastly, important pictures are the ones that seem to generate new (especially unexpected) value -- that in effect are able to argue that there is a new context to take seriously as well as ideas newly available from that context.

I can't resist a final observation, which is that the self-indulgence of the art market's preoccupation with artificially equating "worth" and "importance" is pretty much like the mentality that allows Major League Baseball to declare its winner the World Champion, and the NFL (fewer than 2000 players) to call its game "football" (never mind that for the other nine tenths of humanity, "football" is what the US calls soccer). The mentality doesn't mean that there is any shortage of good product in there; but it increasingly means that the product might fail the "who cares" test in a broader world.

Not surprisingly, the AP argues against having its staffer's work "misappropriated". But as stated by Neumeister, Fairey's lawyers went this way: 'The lawsuit said the purpose of the photograph documented the day's events while Fairey's art, titled "Obama Progress" and "Obama Hope," was meant "to inspire, convince and convey the power of Obama's ideals, as well as his potential as a leader, through graphic metaphor." '

Meanwhile: Fairey is pictured in this Boston Police department booking picture after his arrest in Boston, Massachusetts February 6, 2009. Says Reuters, the source of this pic, Fairey is charged with defacing [really! no pun!] property. Reuters did not identify the police photographer who made this pic -- a situation ripe for Fairey who can now attempt to transform his own mug shot into a "stunning, abstracted and idealized visual image that creates powerful new meaning and conveys a radically different message."...

We expect the message will be HELP, placed strategically centered in block lettering along the bottom edge of the picture.